In all the sound and fury that is being generated over Dyson Heydon’s role as Royal Commissioner, are two questions are being confused.
As the Government runs its defence of the embattled Commissioner, it argues that significant evils, particularly on the part of the CFMEU, are being uncovered by the Commission.
But this argument is an answer to the question “Do we need a royal commission into trade union corruption?”
It is not an answer to the question “Could the Royal Commissioner be perceived as being biased?”
It’s important that we keep these two questions quite separate in considering the position of Dyson Heydon.
On the first, there would be general agreement within Australia that Royal Commissions are an excellent way of uncovering deep-seated and extensive corruption in our society.
The Fitzgerald inquiry into corruption in Queensland and current inquiry into child abuse are two excellent examples of this legal mechanism working at its best.
And it is because this mechanism can work so well, that it is important to protect the integrity of Royal Commissions and the public perception of the impartiality of the Royal Commissioner is central to the maintenance of this integrity.
Heydon has made this statement on the question of bias: “It is fundamental to the administration of justice that the judge been neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. It is the perception of the hypothetical observer that is the yardstick.”
Ironically, Heydon will make the judgement call on his own impartiality. This suggests that he is the (unbiased) “hypothetical observer”.
It’s a Catch-22 situation.
If he were unbiased, he wouldn’t be in this situation of having to make this decision. So the very fact that he’s being forced to make this decision means that perceptions of bias exist and he should stand down.
A comment from shortleg2
A small point but … Garfield Barwick was NOT the G-G at the time of Whitlam’s dismissal, he was Chief Justice of the High Court from 27 April 1964 to 11 February 1981.
See this note: “On Sunday, November 9, 1975, two days before he dismissed Gough Whitlam, the Governor-General met with the Chief Justice of the High Court, Sir Garfield Barwick. On November 10, Barwick, a former Liberal Party minister under Menzies, tendered this advice to Kerr about his constitutional powers.Nov 9, 1975.”
Thank you shortleg2